G.R. Nos.

92362-67 October 15, 1991

CIRILO A. CINCO, DOMINGO AMARO, ANTONIO ABALOS AND ANDRES
SABALZA, petitioners,
vs.
SANDIGANGBAYAN (Second Division) and THE PEOPLE OF THE PHILIPPINES, respondents.
Emerito M. Salva & Associates for petitioners.

MEDIALDEA, J.:p
This petition for review on certiorari seeks the reversal of a resolution issued by respondent
Sandiganbayan dated February 23, 1990, which denied the petitioners' motion to quash Criminal
Cases Nos. 13827 to 13832.
The antecedent facts as summarized by the respondent court are as follows:
1. On April 20, 1981, Fredeswinda P. Balana lodge a letter-complaint with the Office
of the Tanodbayan (now of the Special Prosecutor) against Cirilo A. Cinco, Jose
Bantigue, Domingo Amaro, Antonio Abalos, Andres Sabalza, and others. She swore
to her letter-complaint before Prosecutor Perfecto Llacar, Jr., who certified at the
bottom thereof that he personally examined the affiant and that he was satisfied she
executed and understood it (Annex A of Rejoinder, Record, pp. 125-132). The charge
was docketed as TBP Case No. 81-042401.
Cinco submitted his counter-affidavit on June 16, 1981, and supplemental counteraffidavit on July 16, 1981. Amaro executed his counter-affidavit in June 1981 and
supplemental counter-affidavit on July 16, 1981; Abalos filed his counter-affidavit on
June 18, 1981; Bantigue, on June 25, 1981; and the others, on various dates in the
same year; Sabalza, however, did not.
2. On June 11, 1982, Balana filed another letter-complaint against Cinco and Amaro,
which she put under oath before Prosecutor Ricardo A. Buenviaje who also certified
in writing that he personally examined the affiant and that he was satisfied she
voluntarily executed and understood the letter-complaint (Annex B of Rejoinder,
Record, pp. 133-134). The additional charge was given the number TBP Case No.
82-061408.
Cinco submitted his counter-affidavit on August 11, 1982, and Amaro, on a date
which does not appear on record, but in or before 1986.
3. After the submission of the countervailing affidavits which the defense impliedly
admitted, Balana presented her reply affidavits.
4. The preliminary investigation of the charges was assigned to Prosecutor Ricardo
A. Buenviaje, and it was up for resolution when he was appointed to the judiciary in

1986. It was then re-assigned to Prosecutor Gregorio G. Pimentel Jr., who, on July
23, 1987, issued a resolution recommending the prosecution of the accused for
alleged violations of Section 3(e) of Republic Act No. 3019 (Annex C of Rejoinder,
Record, pp. 131-143). The resolution having been approved by Raul M. Gonzales,
the then Tanodbayan, the corresponding informations for the said violations were
filed with the Sandiganbayan on September 7, 1987, and docketed as Criminal
Cases Nos. 12420 and 12421 against Cinco; 12422 against Bantigue, Amaro, Cinco,
and Abalos; 12423 against Cinco; 12424 against Bantigue, Amaro, and Sabalza; and
12426 against Cinco.
5. The accused filed a motion to quash on May 17, 1988, praying that the said
informations be dismissed for lack of authority on the part of Tanodbayan Gonzales
or his prosecutor to file them and invoking Zaldivar vs. Sandiganbayan, 160 SCRA
843, which had held that the Tanodbayan, now called Special Prosecutor, was
... clearly without authority to conduct preliminary investigations and
to direct the filing of criminal cases with the Sandiganbayan, except
upon orders of the Ombudsman. This right to do so was lost effective
February 2, 1987. From that time, he has been divested of such
authority.
After hearing the prosecution, this Court promulgated a resolution on July 5, 1988,
granting the motion to quash. In that resolution, it observed
... (T)he dismissal of these cases will be without prejudice to the right
of the State, acting through the Hon. Ombudsman, to conduct a new
preliminary investigation and refile the cases if the evidence warrants
the same.
6. On August 4, 1988, Balana requested the re-filing of the cases, and in view
thereof, the accused, through counsel, in turn requested on December 26, 1988, that
she did so 'under separate and distinct charges in accordance with the new rules of
preliminary investigation' (Secs. 3 and 4, Rule 112 of the Rules of Court effective
October 1, 1988) so that the respondents can refute her charges and specific
evidences she may present in support of each separate charge (Annex A of Motion to
Quash, Record, pp. 61-61).
7. In his order of February 16, 1990, Prosecutor Eleuterio F. Guerrero, to whom the
charges of Balana were re-assigned for preliminary investigation, denied the request
of the accused and noting that the parties had already adduced their respective
evidence in the preliminary investigation conducted by the previous prosecutor, gave
her 10 days from receipt to manifest if she elected to adopt the same charges and
evidence already submitted. In the same order, he also granted the accused an
equal period to adduce their controverting evidence.
Balana opted on March 8, 1989, to adopt her said charges and evidence, and the
accused having failed to submit countervailing evidence or any pleading, Prosecutor
Guerrero construed their omission as waiver.

8. On June 27, 1989, he issued a resolution finding prima facie cases for alleged
violations of Section 3 (e) of Republic Act No. 3019 and recommending the filing of
the corresponding informations. The Hon. Ombudsman approved the resolution.
Accordingly, (Criminal Cases Nos. 13827 to 13832 against the petitioners) were
instituted on August 28, 1989. Each information carries with it the certification of
Prosecutor Guerrero
that a preliminary investigation has been conducted in this case; that
there is a sufficient ground to engender a well-founded belief that the
crime charged herein has been committed and that the accused are
probably guilty thereof. (Rollo, pp. 136- 140).
On December 4, 1989, petitioners filed a Motion to Quash the informations filed in the
aforementioned criminal cases on the following grounds:
I. THE INFORMATIONS ARE NULL AND VOID BECAUSE SAME WERE FILED IN
VIOLATION OF SECTION 3 OF RULE 112 OF THE RULES OF COURT AS
AMENDED;
II. THAT THE OFFICER WHO FILED THE INFORMATIONS HAD NO AUTHORITY
TO DO SO; AND
III. THAT THE INFORMATIONS DO NOT CONFORM SUBSTANTIALLY TO THE
PRESCRIBED FORM. (Rollo, pp. 46-47)
After the filing of appropriate pleadings by the Ombudsman in opposition to and by the petitioners in
support of the foregoing motion, the respondent court, on December 20, 1989, issued a resolution,
the dispositive portion of which states:
WHEREFORE, finding the Motion to Quash dated November 24, 1989, and
submitted for resolution on January 29, 1990, to be without merit, the same is
DENIED.
SO ORDERED. (Rollo, p. 151)
Hence, this petition.
Petitioners submit the following assignment of errors:
1. THE RESPONDENT SANDIGANBAYAN COMMITTED GRAVE AND SERIOUS
ERROR IN NOT RULING THAT THE INFORMATIONS FILED IN CRIMINAL CASES
NOS. 13827-32 IN QUESTION, ARE NULL AND VOID BECAUSE SAME WERE
FILED IN VIOLATION OF SECTION 3 AND 4 OF RULE 112 OF THE NEW RULES
OF COURT AS AMENDED;
2. THAT RESPONDENT SANDIGANBAYAN COMMITTED SERIOUS AND GRAVE
ERROR IN NOT RULING THAT THE PROSECUTOR WHO FILED THE
INFORMATIONS HAD NO AUTHORITY TO DO SO; AND

3. THAT THE RESPONDENT SANDIGANBAYAN COMMITTED SERIOUS AND

GRAVE ERROR IN NOT FINDING THAT INFORMATIONS FILED IN CRIMINAL
CASES NOS. 13827-32 DO NOT CONFORM SUBSTANTIALLY TO THE FORM
PRESCRIBED IN SECTION 4 OF RULE 112 OF THE NEW RULES OF COURT.
(Rollo, p. 19)
We affirm.
The peculiar circumstances of this case do not support petitioners' plea for a new preliminary
investigation. It is true that the first informations filed against the petitioners were nullified because
the then Special Prosecutor had no authority to do so in line with Our ruling in the Zaldivar case. Yet,
a careful analysis of the facts shows that the nullity did not extend to the entire preliminary
investigation proceedings undertaken by that office. We note that the preliminary investigation on
Balana's charges started wayback in 1981. Between the years 1981 and 1983, the contending
parties already submitted the counter and supplementale affidavits as well as a reply affidavit. All the
requisite papers having been submitted, the preliminary investigation was up for resolution in 1986
when the Prosecutor who handled the case was promoted to the Judiciary in that same year. It was
just unfortunate that the said resolution was issued in July 1987 and the informations filed in
September of that year. Under such facts, it cannot be said that the proceedings before February 2,
1987 were null and void inasmuch as the then Tanodbayan was clothed with authority to conduct the
same. Consequently, the portion of the investigation proceedings which consists in the oath of
Balana to her letters-complaint, the certifications of the Prosecutors Llacer and Buenviaje, Balana's
evidence, and petitioner's counter and supplemental affidavits with their evidence are still effective
and valid. To countenance the plea of petitioners who have already been afforded the right to a
preliminary investigation conformably with PD 911 would be fait accompli. A new pleriminary
investigation will be useless and repetitious because the same facts and evidence will be elicited.
The investigation proceedings in 1981 and 1983 being valid and proper, the Ombudsman through
the Special Prosecutor III Eleuterio Guerrero could simply take over and continue from that point.
This move will be more conducive to an orderly and speedy administration of justice.
Even granting arguendo that a new preliminary investigation is proper in this case, the same in effect
had already been given to the petitioners. It is noteworthy that before his evaluation of the records of
the first preliminary investigation, Special Prosecutor Officer III, Eleuterio F. Guerrero, required (1)
Balana to manifest if she elected to adopt the same charges and evidence already submitted; and
(2) petitioners to submit their controvering evidence if Balana decided to adopt the same charges.
This directive partakes of the nature of a preliminary investigation which is noting more than the
submission of the parties' respective affidavits, counter-affidavits and evidence to buttress their
separate allegations. Balana opted to adopt her charges and evidence. Petitioners did not submit
any countervailing evidence and consequently, lost the opportunity to submit additional arguments
and supporting evidence in their favor. Their failure, therefore, should not work against the right of
the complainant to an expenditious determination of her complaints.
Petitioners argue that the letters-complaint cannot serve as affidavits or evidence in support of the
charge against petitioners allegedly constituting violations of Section 3, sub-par. (e) of RA No. 3019
as amended; that complainant never positively Identified the other respondents and the offenses for
which they are charged; and that she never presented affidavits of witnesses in support of the
charge or charges against them.

We are not convinced. The Special Prosecutor has full discretion and control of the prosecution of
criminal actions. He alone has the power to decide which as between conflicting testimonies or
evidence should be believed (see People v. Liggayu, 97 Phil. 865). While indeed he has this full
power, it does not follow, however, that the designation of the offense by the Fiscal is binding upon
the court. Settled is the rule that it is crime after the trial and following its own ascertainment of the
facts needed to constitute the elements of the crime attributed to the accused (People v. Eleuterio,
G.R. No. 63971, May 9, 1989, 173 SCRA 243, 251). In his study of the entire records of the
preliminary investigation of Balana's charges, Special Prosecutor Guerrero believed that he has at
least a prima facie evidence to establish the guilt of the petitioners and hence, refiled the cases. This
is enough. It must be emphasized that the Fiscal is not required to prove the guilt of the accused
beyond reasonable doubt. Our statement in Trocio v. Manta (L-34834, November 15, 1982, 118
SCRA 241, 246), bears repeating, to wit:
... When a fiscal investigates a complaint in order to determine whether he should file
charges with the court against the person complained of, the scope of the
investigation is far short of a trial of an accused before the court. It is not required
that all reasonable doubt of the guilt of the accused must be removed; it is only
required that the evidence be sufficient to established probable cause that the
accused committed the crime charged. ... . (emphasis ours)
We also see no need for the Ombudsman to act favorably on petitioner's bill of particulars seeking to
segregate the particulars of each of the six cases to support the re-filing of the six dismissed cases.
The reason being that such procedure has no place in preliminary investigation where no finding of
guilt is made. In Bernabe, Jr., et al. v. Rosario(G.R. No. 83095, July 19, 1988, En Banc Minute
resolution), We held:
... The investigating fiscal, to be sure, has discretion to determine the specify and
adequacy of averments of the offense charged. He may dismiss the complaint
forthwith if he finds it to be insufficient in form or substance or if he otherwise finds no
ground to continue with the inquiry, or proceed with the investigation if the complaint
is, in his view, in due and proper form. It certainly is not his duty to require a more
particular statement of the allegations of the complaint merely upon the respondent's
motion, and specially where after an analysis of the complaint and its supporting
statements he finds it sufficiently definite to apprise the respondents of the offenses
with which they are charged .... Moreover, the procedural device of bill of particulars,
as the Solicitor General points out, appears to have reference to informations or
criminal complaints filed in a competent court upon which the accused are arraigned
and required to plead, and strictly speaking has not application to complaints
initiating a preliminary investigation which cannot result in any finding of guilt, but
only of probable cause. .... (Emphasis supplied)
It appears too that the respondent court found the petitioners' request for particulars of their
respective offenses under Sec. 3 of RA No. 3019, unmeritorious. Such findings, being unrebutted,
are binding on Us. Thus,
2. The accused cannot plausibly claim that they were misled by the designations of
the offenses charged against them and were at a loss as to what to controvert.

(a) For if their claim were true they could not have prepared, verified, and submitted
their respective counter-affidavits and supplemental counter-affidavits.
(b) They are not ordinary government employees with modicum education. They are
professionals. Amaro, Cinco, Abalos, and Sabalza are the School Administrator,
Collecting and Disbursing Officer, College Instructor, and Secondary School Teacher,
respectively, in Sumoroy Agro-Industrial School, a State College owned by the
Government. Bantigue is a lawyer and Hearing Officer in the Ministry (now
Department) of Education, Culture and Sports.
(c) In the dismissed Criminal Cases Nos. 12422, 12424, and 12426, the accused
were also charged with violations of Section 3 (e) of Republic Act No. 3019. They
filed motion for reinvestigation wherein they never complained that they were
preliminary investigated for alleged offenses other than for those violations. Instead,
they narrated in Criminal Cases Nos. 12422 and 12426 their own versions of the
facts constituting their defenses. This means that when entry requested for
specification of the accusations under Section 3 (e), on plaints of Balana included
charges under Section 3 (e) and knew precisely what to controvert. So when
Prosecutor Guerrero denied on February 16, 1989, their request and gave them 10
days to submit controverting evidence, they could have presented those defenses.
3. The 1988 request for specification of the charges under Section 3 (e) came too
late, as it was made only long after the accused had presented their controverting
evidence in 1981 and 1982 and after the preliminary investigation had been deemed
submitted for resolution in or before 1986. To have granted the request was to
unnecessarily conduct a new preliminary investigation and delay the resolution of the
letter complaint. (Rollo, pp. 146-147)
Petitioners' apprehension that they might be put in jeopardy of being charged with informations or
crimes other than the crime imputed in the dismissed cases is baseless. There could be no double
jeopardy for the simple reason that they have not year pleaded to the offense (see Gaspar v.
Sandiganbayan, G. R. No. 68086, September 24, 1986, 144 SCRA 415, 420). Beside, a preliminary
investigation is not a trial for which double jeopardy attaches. We ruled in Tandoc v. Resultan (G. R.
Nos. 59241-44, July 5, 1989, 175 SCRA 37, 43) that:
Preliminary investigation is merely inquisitorial, and it is often that only means of
discovering the persons who may be reasonably charged with a crime, to enable the
fiscal to prepare his complain or information. It is not a trial of the case on the merits
and has no purpose except that of determining whether a crime has been committed
and whether there is probable cause to believe that the accused is guilty therefor,
and it does not place the person against whom it is taken in jeopardy.
Further, petitioners claim that the respondent court has supported their plea for another preliminary
investigation when in the resolution of July 7, 1988, it directed that the dismissal of the informations
against them will be without prejudice to the right of the Ombudsman to conduct a preliminary
investigation and to re-file the cases if the evidence warrants the same.
Such contention is untenable. That portion of the respondent court's resolution is orbiter
dictum which lacks the force of an adjudication and should not ordinarily be regarded as such (see

Morales v. Paredes, 55 Phil. 565, 567). We stated earlier that the fiscal or the Special Prosecutor
has full discretion and control of the prosecution. The courts generally will not interfere with this
power. As the respondent court held:
Nowhere in the resolution of July 5, 1988, did this Court direct the conduct of a new
preliminary investigation on the charges of Balana against the accused. It merely
observed in that resolution that
the dismissal of these cases will be without prejudice to the right of
the State, through the Hon. Ombudsman, to conduct of a new
preliminary investigation and refile the cases if the evidence warrants
the same.
This certainly is not such an order by any stretch of the imagination. (Rollo, pp. 140141)
Lastly, petitioners protest against the certification issued by Special Prosecutor Guerrero as highly
irregular because it did not comply with Section 4, Rule 112 of the Rules of Court. They aver that he
did not personally examine the complainants and witnesses; that he did not inform the petitioners of
the complaint and of the evidence submitted against them and he did not give them to the
opportunity to submit controverting evidence since there was none to controvert. Hence, they
conclude that the said irregularity renders the present informations null and void.
We do not agree. The well-reasoned dissertation of the respondent court in refutation of the
aforesaid arguments needs no amplification. We therefore cite it as Our own:
1. It has been held that if a preliminary investigation was actually conducted, the
absence of the certification by the investigating fiscal that it was conducted is not
fatal. This is the ruling in Estrella, vs. Ruiz, 58 SCRA 779, 784, which arose when
Presidential Decree No. 77 on preliminary investigation was enforced.
It should be observed that Section 3 of Rule 110 [now Section 4]
defines an information as nothing more than an 'accusation in writing
charging a person with an offense subscribed by the fiscal and filed
with the court.' Thus, it is obvious that such certification is not an
essential part of the information itself and its absence cannot vitiate it
as such. What is not allowed is the filing of the information without a
preliminary investigation having been previously conducted, and the
injucntion that there should be a certification is only a consequence of
the requirement that a preliminary investigation should first be
conducted.
Since the absence of the certification does not render null and void the information
filed after a preliminary investigation was conducted, with more reasons the presence
of a certification deficient in any respect does not have that effect.
As already seen, in the instant cases, a preliminary investigation was actually held,
and the accused were even afforded two opportunities to submit their controverting
evidence.

2. Prosecutor Guerrero expressly certified in each information that a preliminary

investigation has been conducted in this case. Such preliminary investigation which
actually took place is presumed to have been regularly held-that is, in accordance
with law. It can therefore be said that the quoted certification impliedly includes the
statement that the accused were informed of the complaint and evidence against
them and that they were given the chance to controvert the same. That they were in
fact so informed and given the chance cannot be denied. They could not have
submitted their counter-affidavits and supplemental counter-affidavits in 1981 and
1982 had they not been aware of the accusations and evidence against them. With
respect to Sabalza who did not submit counter-affidavit, he did not avail of the
opportunity given him in the order of February 16, 1989, of Prosecutor Guerrero. He
waived his right to present evidence.
For the same reason, the same certification also carries with it the implied statement
that 'as shown by the record.' Llacar and Buenviaje' 'personally examined the
complaint and his witnesses,' as in fact these prosecutors so certified in the lettercomplaints of Balana.
3. Untenable is the further contention that "sufficient ground to engender a wellfounded belief is less categorical than "reasonable ground to believe" and, therefore,
not enough compliance with law. The quoted phrases are equivalent expressions
conveying the same thought. This is a mere perusal of the pertinent provisions of law
demonstrates:
Preliminary investigation is an inquiry or proceeding for the purpose
of determining whether there is sufficient ground to engender a wellfounded belief that a crime cognizable by the Regional Trial Court
has been committed and that the respondent is probably guilty
thereof, and should be held for trial. (Sec. 1, Rule 112, 1985 Rules).
He shall certify under oath ... that there is reasonable ground to
believe that a crime has been committed and that the accused is
probably guilty thereof ... (Sec. 4, Rule 112, 1985 Rules). ' (Rollo, pp.
148-150)
ACCORDINGLY, the petition is hereby DENIED. The resolution of the Sandiganbayan, Second
Division dated February 23, 1990 is AFFIRMED. Costs against petitioners.
SO ORDERED.
Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado
and Davide, Jr., JJ., concur.
Melencio-Herrera, J., is on leave